Q The December 2012 rape of the college student on a bus in New Delhi spurred Indian lawmakers to institute harsher punishments for rape. Could you comment on the criminal defense of rape and sexual offenders here in the United States?
A From a criminal defense perspective, at least in California, rape and sexual crimes are difficult for many reasons. First, the nature of these crimes makes it difficult to get people to be objective and fair to the accused.
The law allows prosecutors to use any prior acts of sexually inappropriate or violent conduct against an accused, whether or not they led to convictions. In addition, sex crime convictions lead to mandatory and public sex offender registration.
With the residence restrictions that are now imposed on sex offenders, persons convicted of sex crimes in metropolitan areas often find themselves forced to be homeless.
Rape is a terrible crime that leaves victims broken. Years ago, I believed that rape should be a capital crime. The protests in India show that many people still feel that way. With crimes so abhorrent, finding jurors who can put aside their outrage and who can fairly and objectively decide the case can be nearly impossible.
Then, at trial, prosecutors may use any inappropriate act or sexual crime from the defendant’s past to prove that the rape occurred. The law guards against propensity evidence in most other crimes. It would be improper for a prosecutor to say that a robbery had occurred because the defendant had a robbery conviction in his past. In rape cases, however, an old rape conviction may be used to show that the defendant is guilty of another rape.
Finally, if convicted, the defendant can no longer live anywhere in most Bay Area towns.
There are too many schools and parks that the person must avoid. This lasts a lifetime.
Years after serving his sentence, the defendant still cannot go back home.
Some cases deserve this, but as a blanket policy, it is unnecessarily harsh. Consider that statutory rape, consensual sex between even an eighteen year old and a minor, could lead to sexual offender registration.
Violence against women is a frequent occurrence in this country. Enacting harsher laws is a simple solution, but preventing sexual violence depends upon how the law is enforced and how people think. If men believe women to be objects then there is no crime in treating them badly.
Cultural perceptions of women are important in addressing sexual violence. Sexual violence and rape are universal problems that occur regardless of ethnicity, geography or class. True change can only arrive through education and cultural awakening.
Naresh Rajan is an attorney in San Mateo County. Email firstname.lastname@example.org.